Smith v The Queen [2001] HCA 50

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY AND HAYNE JJ

MUNDARRA DOOLAN SMITH APPELLANT

AND

THE QUEEN RESPONDENT

Smith v The Queen [2001] HCA 50

Date of Order: 21 June 2001

Date of Publication of Reasons: 16 August 2001

S233 and S234/2000

ORDER

1. Appeals allowed.

2. Order of the Court of Criminal Appeal of New South Wales of 21 October 1999 set aside. In place thereof order that the appeals to that Court be allowed, that the conviction and sentence be quashed, and that there be a new trial.

On appeal from the Supreme Court of New South Wales

Representation:

P Byrne SC with M D Austin and T S Corish for the appellant (instructed by Sydney Regional Aboriginal Corporation Legal Service)

M G Sexton SC, Solicitor-General for the State of New South Wales with R D Ellis and B K Baker for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Smith v The Queen

Criminal law – Evidence – Relevance – Identification – Evidence of recognition by police officers of the accused in photographs from bank security cameras – Police officers in no better position than jury to compare appearance of accused with photographs – Evidence Act 1995 (NSW), s 55 – Whether evidence could rationally affect the assessment by jury of probability of the existence of a fact in issue – Whether admissible as opinion evidence.

Evidence – Relevance – Opinion or fact evidence – Evidence Act 1995 (NSW), s 55 – Evidence of recognition by police officers of accused in photographs from bank security cameras – Whether relevant – If relevant whether excluded as opinion evidence.

Evidence Act 1995 (NSW), ss 55, 76.

1. GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ. On 21 June 2001, the Court made orders setting aside the order of the Court of Criminal Appeal and in place directing that there be a new trial of the appellant. What follows are our reasons for joining in the orders that were made. 2. The appellant was indicted in the District Court of New South Wales on a charge that, on 26 June 1997, being in company with others, he robbed two bank officers of a sum of money which was the property of the bank. To that charge he pleaded not guilty but he was convicted. His appeal to the Court of Criminal Appeal against conviction was dismissed[1]. 3. That there had been a robbery of the bank by four young men was not in issue at the appellant's trial. Bank security cameras had taken photographs showing what happened. The prosecution's case against the appellant was that he was the person who was shown in the photographs, standing near the back of the automatic teller machine, apparently keeping lookout while the co‑offenders took the money. 4. It was, therefore, a fact in issue on the trial of the appellant whether the appellant, the person standing trial, is the person depicted at the right‑hand side of some of the security photographs. 5. Two police officers gave similar evidence at trial, over the objection of the appellant. Each said that he had had previous dealings with the appellant and that he recognised the person depicted in the bank photographs as the accused. Each continued to maintain, in the witness box, that he recognised the person depicted as being the appellant. The question on this appeal is whether that evidence was properly received. 6. As is always the case with any issue about the reception of evidence, identification evidence being no exception, the first question is whether the evidence is relevant. No attention was given to this question in the arguments advanced at trial, or on appeal to the Court of Criminal Appeal, but that question must always be asked and answered. Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore[2]: